Judge lets Dakota Access pipeline operate during environmental study

A federal judge ruled Wednesday that the Dakota Access oil pipeline, shown during construction in North Dakota last year, can continue operating while a study is completed to assess its environmental impact on the Standing Rock Sioux. Tom Stromme/The Bismarck Tribune via Associated Press

BISMARCK, N.D. — A federal judge ruled Wednesday that the Dakota Access oil pipeline can continue operating while a study is completed to assess its environmental impact on an American Indian tribe.

U.S. District Judge James Boasberg’s decision is a blow to the Standing Rock Sioux, who have argued that an oil spill from the pipeline under Lake Oahe – from which the tribe draws its water – could have a detrimental effect on the tribal community.

“Today’s decision is a disappointing continuation of a historic pattern: Other people get all the profits, and the tribes get all the risk and harm,” said Jan Hasselman, an Earthjustice attorney representing the tribe in an ongoing federal lawsuit through which Standing Rock and three other tribes still hope to shut down the pipeline.

Boasberg found it is likely that the Army Corps of Engineers will be able to justify previous decisions made while permitting the pipeline.

“The Corps must simply connect the dots,” he said. “This, then, is not a case in which the agency must redo its analysis from the ground up.”

Boasberg also acknowledged that shutting down the pipeline would disrupt the energy industry, but said it wasn’t a major factor in his decision.

The $3.8 billion pipeline built by Texas-based Energy Transfer Partners has been operating since June 1, moving oil from North Dakota through South Dakota and Iowa to a distribution point in Illinois. From there it can be shipped to the Gulf Coast and potentially lucrative markets abroad. It has the capacity to move half of the oil produced daily in North Dakota, the nation’s second-leading producer behind Texas.

Energy industry officials applauded Boasberg’s ruling, with North Dakota Petroleum Council President Ron Ness calling the pipeline “a critical part of American energy infrastructure.”

The Justice Department declined comment on behalf of the Corps. Hasselman said Boasberg’s ruling isn’t appealable.

President Trump had pushed for the pipeline’s completion, and the Corps dropped a plan to conduct more environmental study after he took office.

Boasberg ruled on June 14 that the Corps largely complied with environmental law, but he ordered the agency to reconsider certain areas of its analysis, and took arguments on whether to shut down the 1,200-mile pipeline while the work is done.

Boasberg said the Corps didn’t adequately consider how an oil spill under the Lake Oahe reservoir on the Missouri River in the Dakotas might affect the Standing Rock Sioux. The tribe is among four that have challenged the pipeline in court over environmental fears that Energy Transfer Partners says are unfounded.

The judge said the Corps also didn’t adequately study how the pipeline might disproportionately affect the tribal community – a concept known as environmental justice. That aims to ensure development projects aren’t built in areas where minority populations might not have the resources to defend their rights.

In its analysis of the Missouri River crossing, the Corps studied the mostly white demographics in a half-mile radius, which the agency maintains is standard. But if the agency had gone an additional 88 yards – about the length of a football field – the study would have included the Standing Rock Reservation.

In his ruling Wednesday, Boasberg said that issue was “a closer call” than the others, but that it still did not justify shutting down the pipeline. He noted that the tribe’s water intake has been moved about 50 miles downstream since pipeline construction began, and said an alternative river crossing near Bismarck that had been studied and rejected would pass much closer to a drinking water intake that serve tens of thousands more people.

“Risks presented to this tenfold increase in population must, of course, be considered,” the judge said.

Corps attorneys said the agency expects to be able by next spring to substantiate its earlier determination that the pipeline poses no significant environmental threats. Energy Transfer Partners maintained that a shutdown would cost it $90 million monthly and significantly disrupt the broader energy industry as well as state and local tax revenue. The North Dakota Pipeline Authority this week said that the Dakota Access pipeline boosted the state’s tax revenues by about $19 million in its first three months of operation.

Tribal attorneys argued that Energy Transfer Partners had overstated the potential effects of a shutdown, and Boasberg acknowledged “some cause for skepticism” regarding the company’s predictions. Tribal attorneys also said a shutdown would create incentive for the Corps to take the review seriously.

The tribes had proposed a fallback plan if Boasberg decided against a shutdown. It includes increased public reporting of pipeline issues such as repairs, and implementation of a spill response plan – including equipment staging – at Lake Oahe. Boasberg said he will hear arguments on the matter. He scheduled a status conference for next Wednesday.

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